Ethics Opinions

Opinion 2014-5

Summary: A
lawyer for a party may "friend" an unrepresented adversary in order
to obtain information helpful to her representation from the
adversary's nonpublic website only when the lawyer has been able to
send a message that discloses his or her identity as the party's
lawyer.

Facts: A lawyer
inquires whether she may directly request access to "non-public
information" on a potential adverse party's social networking site
(Facebook) to attempt to ascertain information relevant to
contemplated litigation when the opposing party (X) is at present
unrepresented.

Discussion: We
begin our analysis with the reported fact that X is unrepresented.
Rule 4.3 provides that "(a) In dealing on behalf
of a client with a person who is not represented by counsel, a
lawyer shall not state or imply that the lawyer is disinterested.
When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer's role in the
matter, the lawyer shall make reasonable efforts to correct the
misunderstanding." We will assume that as of the moment the
inquirer does not know that X has counsel. Rule 4.3 states that a
lawyer shall makes a reasonable effort to correct any
misunderstanding of an unrepresented party with whom the lawyer is
dealing concerning the lawyer's role. This requirement seems
derived from the more general proposition contained in Rule 4.1(a)
that "[i]n the course of representing a client a lawyer shall not
knowingly. . . " make a false statement of material fact or law to
a third person." Rule 8.4(c) makes the same point even more
broadly: "It is professional misconduct for a lawyer to . . .
engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation . . . .

In the Committee's view, it is not permissible for the lawyer
who is seeking information about an unrepresented party to access
the personal website of X and ask X to "friend"[1] her without disclosing that the requester is
the lawyer for a potential plaintiff. In so doing, the lawyer would
be engaging in deceit forbidden by Rules 4.1 and 8.4(c). See
Philadelphia Bar Association Opinion 2009-2 and San Diego County
Bar Association Legal Ethics Opinion 2011-2. Moreover, this is a
situation where not only is X likely to misunderstand the lawyer's
role but also one where the lawyer has enabled the
misunderstanding. See New Hampshire Advisory Ethics Opinion
2012-13/05. We do not agree with the conclusion of the Oregon
Ethics Committee in its Opinion No. 2013-189 that the burden should
be on the unrepresented party to ask about the inquirer's purpose
rather than on the lawyer to disclose her identity and/or purpose.
We believe that it is permissible to "friend" X in this situation
in order to access nonpublic information only when the lawyer has
been able to send a message that discloses her identity as the
plaintiff's lawyer. Facebook, LinkedIn and other social media sites
allow the invitation to include a message. We also do not agree
with the suggestion in Formal Opinion 2010-2 of the New York City
Bar Association's Committee that the lawyer's identification
message may be contained in a "profile" created on the lawyer's
personal social media page. It is well known that "friending"
requests are often granted quite casually, and viewing the
invitee's profile is not necessarily a mandatory step in accepting
a "friend" request. The lawyer's message must accompany the
"friending" request in order to avoid the very real possibility
that the recipient will be deceived. Although this communication
medium is obviously different, the bottom line resembles a
telephone call in which the lawyer does not adequately identify
herself.

It is incumbent on the inquiring lawyer to keep in mind,
however, that at some point she may learn that in fact X has come
to be represented by counsel. At such point, the Rules change and
any communication with X becomes subject to the prohibition
contained in Rule 4.2. (As to a lawyer's "knowledge" of
representation, see Rule 4.2, Comment 5.) Rule 4.2 provides that
"[i]n representing a client, a lawyer shall not communicate about
the subject of the representation with a person the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized by law to do
so." This Opinion does not address any issues relating to social
media when the restrictions of Rule 4.2 are involved.

This Opinion addresses only the factual situation described
herein and is not meant to advise with respect to other
hypothetical situations involving access to social networking
sites.

This advice is that of a committee without official
government status.

This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on May 8,
2014.

[1] For simplicity, we refer to
Facebook/Instagram terminology, but the Committee's view applies
equally to connecting on LinkedIn and other similar social
media.